European Court of Justice’s “Right to Be Forgotten” Case Could Threaten Digital Rights

European Court of Justice’s “Right to Be Forgotten” Case Could Threaten Digital Rights

FOR IMMEDIATE RELEASE

September 19, 2018

NEW YORK—A benchmark case before the European Court of Justice that could extend the applicability of Europe’s “Right to Be Forgotten” (RTBF) law globally, with hearings currently under way, could threaten digital rights and cast a chill on free speech, PEN America said in a statement today.

On September 11, the European Court of Justice (ECJ) heard arguments in an appeal centering on whether its own 2014 ruling—requiring that search engines delete or delist results when requested to by a private citizen—apply not just within the parameters of the EU, but worldwide. France’s data-protection regulator, the CNIL, which appealed the 2014 ruling, is arguing that it should be ruled impermissible that such “forgotten” results are available on non-EU versions of Google or when EU-based citizens use software such as VPNs to evade using versions of the search engine that comply with EU law. In response to the CNIL’s request that the “Right to be Forgotten” apply to search results globally, Google countered last November with arguments that expanding this law could constitute censorship and potentially impinge on the rights of internet users in other countries. Google has been joined by free speech advocates, news organizations, and even the EU’s executive arm in opposing the CNIL’s appeal. A non-binding opinion on the case is expected in December, with a final ruling several months later.

“The proposed expansion of EU privacy regulations is deeply troubling from a free expression standpoint,” said Karin Deutsch Karlekar, Director of Free Expression at Risk Programs at PEN America. “Particularly in this era of ‘fake news’ and altered historical narratives, the ability to change or erase the record should be applied sparingly, and should be subject to review and appeals processes for each request made with a public interest exception built in. More balance and definition is needed to ensure that privacy rights are not being strengthened at the expense of the core rights to free expression and information. It is also striking that Google’s argument before the European Court of Justice is precisely the same argument that groups including PEN America have made to Google with regard to their exploration of introducing a filtered search engine for the China market; Google should heed its own warning and resist government efforts to restrict public access to information anywhere in the world. ”

On September 7, PEN America published an open letter to Google to share our concerns regarding the company’s reported interest in launching a filtered search engine—as well as several other services—for the China market. PEN America has also previously noted that the trend in favor of passing and expanding RTBF laws, which can be used to censor news and information and to authorize excessive and discretionary government regulatory powers, is cause for concern.

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